Volume 8 — Alabama Appellate Reports

Heard before Hon. B. M. Miller. Clarence Davis ivas convicted of murder in tbe second degree, and be appeals. Tbe charge refused to the defendant is as follows: “If you believe from tbe evidence in this case that if defendant bad stood- still or retreated be would have suffered death or great bodily barm, tbe defendant bad tbe right to advance on tbe deceased and cut him.”

Heard before Hon. M. S'ollie. El Key ivas convicted of murder and he appeals. The court was in error in permitting the declarations of the decedent to go to the jury as dying declarations. — Justice v. The State, 99 Ala. 180; Sims v. The State, 139 Ala 74; Tioitty v. The State, 168 Ala. 59.

Heard before Hou. M. Sollie. Otis Perry was convicted of murder in the second degree, and he appeals. The facts sufficiently appear from the opinion.

Heard before Hon. C. C. Nesmith. Lntber Johnson was convicted of manslaughter in the first degree, and he appeals. The facts of the case sufficiently appear from the present opinion and from the report on a former appeal. — 4 Ala. App. 47, 57 South. 593.

Heard before Hon. Thomas W. Wert. Wince Garth was convicted of murder in the second degree, and he appeals.

Heard before Hon. T. L. Sowell. John Swain, alias, was convicted of murder, and be appeals. No sufficient service of the indictment on defendant is shown. — Welsh v. State, 56 South.. 11. The deceased is not properly described. — Wilson v. State, 127 Ala: 17.

Appeal, from Franklin Circuit Court. Heard before Hon. C. P. Almon. Luden Harris was convicted of manslaughter in the first degree, and he appeals. The facts sufficiently appear from the opinion.

<p> Manslaughter. </p> <p>1. Jury; Venire; Motion to Quash. — Under Acts 1909, p. 320, a venire cannot be quashed because of a mistake in the name of a juror drawn and summoned; in this instance, no harm accrued to defendant because of the mistake, as the court required the state to exercise one of its challenges in eliminating the name of such juror.</p> <p>2. Homicide; Retreat; Duty; Burden of Proof. — The state does not have the burden of. showing, in a homicide case that defendant could have retreated without increasing his peril.</p> <p>3. Charge of Court; Oral Charge; Instruction. — The oral charge must be considered as a whole, and if when so considered, it is a fair and correct statement of the law, error cannot be predicated upon isolated portions thereof, which may be incorrect.</p> <p>4. Same; Covered by Those Given. — It is not error to refuse requested charges substantially covered by written instructions given.</p>

Heard before Hon. II. A. Pearce. Isliam Rigell, alias, was convicted of manslaughter in the first degree, and appeals. The defendant was convicted of killing Tallie Purvis, under the circumstances as stated in the opinion. J)ur-in g..the examination of a witness concerning a pistol found in the yard the next morning, the solicitor said: “Suppose they found one there?

Heard before Hon. John T. Lackland. Joe Gibson was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. D. W. ■ Speake. Willis Bone ivas convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. T. L. Sowell. Will Johnson was convicted of manslaughter and he-appeals. The admission of irrelevant evidence is erroneous, and will work a reversal, as. the courts must presume injury, unless the contrary affirmatively appears. — Glewis v. Malone, 181 Ala. 465;: Sur gin er v. State, 184 Ala. 120; Langford v. State, 130' Ala. 74.

Heard before Hon. H. A. Pearce. ' Jim Maloy was convicted of murder in the second degree, and he appeals.

Heard before Hon. Thomas W. Coleman, Jr. Tom Bynum was convicted of manslaughter, and he appeals. Under the evidence in this case defendant was entitled to have the jury instructed as requested by it in refused charges 2, 5, 6 and 7. — McGee v. State, 58 South. 1010; Walls v. State, 90 Ala. 618.

Heard before Hon. B. M. Miller. Will Conwill was convicted of manslaughter in the first degree, and he appeals. The original transcript did not contain a copy of the orders made by the court relative to setting the day, summoning the venire and the order for their service upon the defendant, together with a copy of the indictment. The return of certiorari shows that the court made all the necessary and proper preliminary orders.

Heard before Hon. J. J. Curtis. Raffle Descrippo ivas convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. A. E. Gamble. Hubb Boyett, alias, etc., was convicted of manslaughter in the first degree and he appeals.

Heard before Hon. Thomas W. Wert. John Brake was convicted of manslaughter in tbe first degree, and appeals.

<p> Murder. </p> <p>Jury; Venire; Qualifying; Method. — While the better practice in a capital case is to take! each juror separately on his voir dire examination as to qualification and competency, the fact that the entire venire was qualified in a body, did not render the action of the court in that particular harmful to defendant, but will be regarded as an ill chosen method authorized for facilitating business.</p>

Heard before Hon. H. A. Pearce. Ida Clark was convicted of manslaughter in the first degree, and she appeals. Held: .or who held it, and the cause should he dismissed for failure of judgment to support. — Bowen v. .State, present term; Grantham v. State, 3 Ala. App. 168.

Heard before Hon. C. C. Nesmith. Will Kirkwood was convicted of manslaughter in the first degree, and bis imprisonment fixed at two years, and he appeals.

Heard before Hon. C. P. At.mon, Will Watts was convicted of murder and he appeals. The .court was in error in admitting evidence of the physi-cían that he had beard it stated that defendant bad killed bis first wife, and baying admitted sncb statement, the court should have permitted defendant co show the causes leading up to the death of his first wife. —Longmore v. State, 130 Ala. 66; Mitchell v. State, 114 Ala. 45; Abel v. State, 90 Ala. 631; Cooley v. Stale, in MSS.

Heard before Hon. Mike Sollie. Jake Givens was convicted of manslaughter in the first degree and be appeals.

Heard before Hon. D. W. Speake. Bob Langston was convicted of manslaughter in the first degree, and appeals.

Court. - Heard before Hon.' Thomas- W. Coleman, Jr.v John Eatoii was convicted of-' manslaughter,^ and he appeals. Charge 15 is as follows: “Unless you believe from the evidence that a conspiracy to assault Sarge or Shelt Kennedy had been formed between John Pearce prior to the time the. box of cartridges was given Dyer by Pearce, then you cannot consider the evidence as‘to Pearce giving Dyer the cartridges.” ° /. ,. “Charge 13.

Heard before Hox. Armstead Brown. Yancey Davis and another were convicted of manslaughter in the first degree, and they appeal. The original verdict returned found defendant guilty of manslaughter without finding the degree, and on being recalled the jury stated to the court ivhat the jury found, and this ivas inserted.

Heard before Hon. Thomas W. Coleman, Jr. Jolin Fowler was convicted of manslaughter, and he appeals. The court’s order was not sufficient either as fixing a proper venire or as requiring the proper order to issue to the sheriff for summoning the venire. —Sec. 32, Acts 1909, p. 317. Counsel discuss the propositions of evidence assigned, but without citation of authority.

Heard before Hon. D. W. Speake, Hubert Morgan was convicted of manslaughter, and be appeals. While Mrs. Sciverly was on the stand, the solicitor asked her what did Pearce say. Over objection, witness was permitted to answer: “Pearce called him a vile name (repeating it), and Arthur picked up a breast yoke and made him take it back.

Heard before Hon. Bernard Harwood, Elmer Olive was convicted of manslaughter in the first degree, and he appeals.

Heard before Hon. H. A. Pearce. Buddie Newell was convicted of manslaughter and he appeals. Section 15, Acts 1909, requires the clerk to notify the county judge in writing of the failure of the circuit judge to draw the jury, and the failure to do so where written notice is required is fatal. — 29 Cyc. 1117; 1 N. Y. App. Div. 586; 14 Wend. 539; 3 Johns. 107; 53 Barb. 407.

Heard before Hon. Mike Sollie. Square Ward Avas convicted of an assault with intent to murder and be appeals. No brief reached the Beporter. The organization of the grand and petit jury should be stricken from tbe record, as no question was made thereon.— Redmon v. State, present term. The bill of exceptions should he stricken because not signed in time, nor was the record filed within the year. — Swain v. State, 60 South. 961.

Clay County Court. Heard before Hon. E. J. Gabeison. J. Van Smith was convicted of assault with intent to murder, and he appeals. The facts are .sufficiently stated in the opinion.

Heard before Hob. J. J. Curtis. Lynn Johnson was convicted of an assault, and he appeals. It is competent to show that just previous to the difficulty the defendant and a brother of the prosecuting witness had had trouble, especially in view of the testimony of the prosecuting witness. — Lodge v. State, 122 Ala. 97; Me Ador y v. State, 62 Ala. 154.

Heard before Hon. J. J. Curtis. Bice Davis was convicted of assault and battery and lie appeals. The court erred in refusing to admit testimony as to the acts and declarations of Posey relative to throwing bottles, and as to bis preparation made to carry out bis threat. — -21 A. & E Enc. of Law, 229. The evidence offered by the defendant to incriminate the third party, Posey, was inadmissable.

Heard before Hon. W. W. Haralson. William M. Hardin was convicted of an assault and he appeals. Counsel discuss the errors assigned, but without citation of authority. Counsel discuss the errors assigned, hut without citation of authority.

Heard before Hon. Mxice Sollie. Baltimore Trailer Avas. convicted of an assault and be appeals. The court was in error in striking out the statement of the witness that it seemed like a knife. — Mitchell v. State, 94 Ala. 72, and cases cited; Stevens v. State, 1 Ala. App. 16B.

Heard before Hon. H. A. Pearce. Hugh MeGilvery ivas convicted of maliciously shooting at a locomotive, and be appeals. The indictment did not specify to whom the railroad belonged, nor did it allege that the locomotive fired into was a part of a railroad train, as required by the statute, and it was therefore, insufficient. — Sec. 7675, Code 1907.

Heard before Hon. J. E. Blackwood. Hugh Staton was convicted of an offense, and he appeals. The court erred in its oral charge as to reasonable doubt. — Kirkwood v. State, 57 South. 504; Walker v. State, 153 Ala. .31; Crimes v. State, 105 Ala. 86; Carter v. State, 103 . Ala. 94; Bell v. State, 89 Miss. 810. On these same authorities, the trial court should have given charges 2, 3 and 10, requested by defendant.

Heard before Hon. M. Sollie. John Cogbill was convicted of burglary, and he appeals. The following is charge 2: “The court charges the jury that the presumption of law is that a person is sane until the contrary is shown by the evidence, but that when insanity is once established the same is presumed to. continue until it is shown by the evidence that the person has been restored to a mental condition of sanity.

Heard before Hon. W. W. Harals'on. Jim Allen was convicted of burglary, and he appeals. The stamp book was not admissible in evidence. — Buchanan v. State, 109 Ala. 7; Crane v. State, 111 Ala. 45. The proper predicate was not laid to render the trailing of the dogs admissible. — Hodges v. State, 98 Ala. 10; Simpson v. State, 111 Ala. 8; Richardson v. State, 145 Ala. 46. The charge requested should have been given. — 116 Ala. 445; 47 Ala. 603.

Heard before ITon. W. W. Haralson. George Hawkins was convicted of burglary and be appeals. The indictment was fatally defective, and the demurrer should have been sustained. — Danner v. State, 54 Ala. 128; Johnson v. State, 32 Ala. 588; Picket v. State, 60 Ala. 77; Henderson v. State, 70 Ala. 23.

Heard before Hod. C. P. Almon. J. B. Bonner was convicted of obtaining the signature of a certain named person to a note by false pretense with intent to injure and defraud, and he appeals. It was not competent to show that the person signing the note had it to pay, and defendant had failed to pay it, since the offense was complete, if it committed at all, when the signature was obtained. — Meek v. State, 117 Ala. 122.

Heard before Hon. Armstead Brown. William King was convicted of forgery and be appeals. The court was in error in admitting checks given by the drawer and shown to be genuine for the purpose of comparison. — Griffin v. Working Women’s Assn., 151 Ala. 597; Williams v. State, 61 Ala. 33.

Heard before Hon. T. L. Sowell. Jim Sanford ivas convicted of forgery and be appeals. Tbe indictment was subject to demurrer, and tbe court ivas also in error in admitting the note under tbe indictment. — Agee v. State, 113 Ala. 52; Butler v. State, 22 Ala. 43; McClellan v. State, 121 Ala. 18. On these authorities, tbe court should have given appellants tbe affirmative charge.

Appeal- from Limestone Circuit Court. - Heard before Hon. D. W. Speaks. Will Bartlett Avas convicted of forgery, and he appeals. There Avas a fatal variance betAveen the instrument offered and that set .out in the indictment. — Leith v. State, 312 Ala. 26; Agee’s Case, 113 Ala. 52. The state failed to make out a case as charged against defendant. — 53 S. W. 864; 27 S. W. 816; 48 Pac. 1024; 56 Pac. 750; 2 East. P. C. 996.

<p>Appeal from Pike Circuit Court.</p> <p>Heard before Hou. H. A. Pearce.</p> <p>Robert Cheshire was convicted, of false pretense, and he appeals.</p> <p>The indictment is as follows: “Robert E. Cheshire did falsely pretend to the Southern States Fire & Casualty Insurance Company of Birmingham, Ala., a cor-portion incorporated under the laws of the state of Alabama, with intent to defraud, that' he owned a dwelling house and the furniture contained therein, situated at Sandfield in Pike county, Ala., on the north of Three Notch road, and by means of such false pretense obtained from the said Southern States Fire & Casualty Company of Birmingham, Ala., a policy of insurance against loss by fire of said dwelling house to the amount of $400, and against loss by fire of said furniture to the amount of $100; and on or about the 10th day of October, 1911, said dwelling house and all or a part of the said furniture were destroyed by fire; and on or about the 27th day of October, 1911, said Robert E. Cheshire did falsely pretend to said Southern States Fire & Casualty Insurance Company of Birmingham the sum of $475, on account of the loss by fire of said dwelling house and all or a part of said furniture.”</p> <p>The demurrer is in effect that there were two distinct and separate offenses joined in the same count, and that it does not indicate whose signature to the policy was obtained by means of said alleged false pretense.</p> <p>No brief reached the Reporter.</p> <p>The indictment was sufficient. — Bailey v. State, 159 Ala. 4; Sec. 6921, Code 1907.</p>

Heard before Hon. Charles E. Waller. Syd James was convicted of buying, receiving, or aiding in concealing a bale of. cotton, knowing it to be stolen, and be appeals. No brief reached the Reporter.

Heard before Hon. M. Frank Cahalan. Walter Fulton was convicted of receiving stolen goods, and be appeals. The bill of exceptions should be established, as it is admittedly correct, and the only reason for declining to sign it was that the term of the judge had expired.' The affirmative charge should have been given because of the want of proof of-some of the elements constituting the offense.

Heard before Hon. W. W. Haralson. Frank Watts was convicted of seduction, and appeals. The defendant was charged with seducing Billa Jones, by means of arts, flattery, deception, and promise of marriage, and the facts sufficiently appear in the opinion.

Heard before Hon. S. L. Brewer. Andrew Gleghorn was convicted of adultery and he appeals. The case is submitted on merits, and on motion to establish a bill of exceptions. No briefs reached the Reporter.

Heard before Hon. J. H. Ballentine. Percy E. Brooks ivas convicted of an assault with intent to commit rape and he appeals. The facts sufficiently appear from the opinion. The following are the charges complained of by the defendant and referred to in the opinion, as essential to he set out: 5.

Heard, before Hon. S. L. Brewer. Garfield. Burton was charged with an assault with intent to commit a rape, convicted of an attempt to commit an assault with intent to commit a rape, and he appeals. The court was in error in receiving the verdict, and in giving the charge under section 6311, on the theory that there could be a conviction of an attempt to commit the assault.— Gray v. State, 63 Ala. 73; Jackson v. State, 91 Ala. 55; Jones v. State, 90 Ala. 628.

Heard before Hon. O. J. Semmes. J. C. Mangeldorf ivas convicted of violating the act for the preservation of oysters, and be appeals. Tbe failure to pay the license is not a criminal act. — Parker v. State, 59 South. 319; State v. Street, 117 Ala. 203. When a statute creates an offense, it is strictly construed so as not to bring within its terms anything not clearly intended by the legislature.

Heard, before Hon. Gaston Gunter. Mike Minto was convicted of keeping a gaming table, and'lie appeals. Tlie exceptions to evidence sufficiently appear in the opinion.

Heard before Hon. J. C. B. Gwm From a conviction of keeping a gaming table, Frank Harmon appeals. Charge 1 was the affirmative charge. “Charge 21.

Equity Court. Heard before Hon. Thomas W. Wert. Edgar Grantland was convicted of abandoning bis wife, and be appeals.

Heard before Hon. Mike Sollie. Alto Abercrombie was indicted and convicted of cruelly treating or killing animals, and be appeals.

■ Appeal from Barbour Circuit Court. Heard before Hon. M. Sollies. Solon McLeod and another were convicted of violating the fish and game laws, and they appeal.

Heard before Hou. B. M. Miller. Wright Savage was convicted of arson, and he appeals.

Heard before Hon. Armstead Brown. Paul F. Dix was convicted of unlawfully dealing in junk, and be appeals.

Heard before Hou. H. A. Pearce. Emanuel Young was convicted of an offense and he appeals. Submitted on motion to strike bill of exceptions, and on the merits. Counsel discusses the case on its merits, but in view of the opinion, it is not deemed necessary to here set it out.

<p> Grime. </p> <p>Costs; Sentence for; Time. — A judgment sentencing to ham labor for costs should ascertain the number of days at hard labor required to pay the costs, and tailing to do so, the appellate court will reverse back to the judgment and remand the cause for proper sentence, where the record fails to show the amount of the costs sufficiently to enable the appellate court to ascertain and fix the time.</p>

Heard before Hon. D. W. Speake. Wilmer Harper was convicted of grand larceny, and be appeals. Defendant was accused of taking |135 from C. H. Robinson while he was asleep.

Heard before Hon. W. W. Haralson. John W. Blalock was convicted of allowing stock to run at large in a stock law district, and be appeals.

Heard before Hon. J. C. B. G-win. J. J. Smith was convicted of treating diseases for compensation without having obtained a certificate from the Board of Medical Examiners, and he appeals. Under the evidence defendant was not liable to conviction under section 7564, and the demurrers to the indictment should have been sustained. — 187 U. S. 94, 135 Fed. 1. The indictment followed the Code form and was therefore sufficient. — Form. 84.

Heard before Hon. James H. Ballentine. Berry Pierce was convicted of embezzlement, and he appeals.

Heard before Hon. Bernard Harwood. Lester Boatner was convicted of carrying a concealed pistol, and of public drunkenness, and he appeals. All the exceptions raise the same question, and that is whether defendant can be indicted, tried and convicted of two séparate and distinct and non-kindred misdemeanors charged in separate counts of the same indictment.- — James v. State, 104 Ala. 20; Neville v. State, IBB Ala. 99.

Heard before Hon. B. M. Miller. Ira Jefferson was convicted of violating the prohibition law, and he appeals. The indictment charged the defendant sold, offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, contrary to law. The demurrers set up that it charged no offense, that it failed to show the time or place, and many other technical objections under the statutes and Constitution, as to the nature and cause of the offense.

Heard before Hon. C. P. Almon. Bob Hammock was convicted of unlawfully selling intoxicating liquor, and lie appeals. Tlie remark of tlie solicitor during his argument to the jury, referred to by the court in its opinion, was: “I state to you, gentlemen, that the state’s witness told the God’s truth when he said he bought that whisky.” Counsel discuss the errors assigned but without citation of authority.

.Heard before I-Ion. Thomas W. Wert. Elmer Slianeyfelt was convicted of violating- the prohibition law and he appeals. Where evidence is illegal or irrelevant a general objection is sufficient.' — McClellan v. State, 117 Ala. 144; Gunter v. State, 111 Ala. 23. Tlie evidence did not authorize a conviction. — Washington v. State, 55 Ala. 355; Thompson v. State, 20 Ala. 54; Segars v. State, 86 Ala. 59.

Heard before Hon. Thomas W. Wert. Ed Yeager was convicted of violating the prohibition law, and he appeals. The defendant’s plea in abatement to the indictment was good, and not subject to be striken oil motion. — Sunflower Go. v. Turner, 158 Ala. 191; G. of Ga. v. Sims, 53 South. 826. The plea presented a good defense, as the action of the court was illegal. — Osborn v. State, 45 South. 666; Spivey v. State, 56 South. 232; Thayer v. State, 35 South. 406.

Heard before Hon. S. L. Brewer. John Lester was. convicted of violating the prohibition law, and he appeals. The indictment should! have alleged that the offense was committed after Jan. 1, 1909, as it was preferred before the twelve month period had elapsed. — Kelly v. State, 171 Ala. 149; Scott v. State, 3 Ala. App. 148 ; Glenn v. State, 158 Ala. 44; Marks v. State, 159 Ala. 88.

Heard before Hon. Thomas W. Wert. George Hafly was convicted of violating the prohibition law, and he appeals. The court erred in overruling defendant’s motion to quash and abate the indictment against him, because of the fact that the court erroneously supplied the place of an original member of the grand jury at a time when the grand jury had not been reduced below the legal number.— Peters v. State, 98 Ala. 38; Osborn v. State, 154 Ala. 44; Shivers v. State, 56 South. 233.

Heard before Hon. T. L. Sowell. Earl Dunn was convicted of violating the prohibition law, and he appeals. While the defendant was on the stand for himself, he was asked by the solicitor on cross-examination, “How much whisky did you get in the bunch that you got those 3 one-half pints from?” and the witness answered that he got a case ivith something like 48 pints in it. The evidence tended to show that the place where the whisky was found was not a dwelling.

’Heard before Hon. Thomas W. Wert. Prom a judgment refusing restoration to claimant, and entering a forfeiture as to intoxicating liquors, B. P. Wallace appeals. Under the agreed statement of facts in this case, the judgment in the lower court was erroneous.' — Oity of Bessemer v. Edge, 50 South. 371; Toole v. State, 170 Ala. 41. The judgment is proper under tbe agreed statement of fact. — Sec. 5, Acts 1909, p. 10; Secs. 19 and 20, Acts 1909, p. 73.

Heard before Hon. Thomas W. Wert. George Warrick was convicted of violating the prohibition law, and he appeals'. It is error to permit the state to show that defendant sold a beverage of the color of beer or Avhisky. — Wright v. State, 58 South. 803. On the same authority, the court was in error in permitting like questions.

Heard before Hon. W. W. Pearson. George Williams was convicted of transporting liquor for another through the streets of a city or town, and he appeals. Section 24 of the Fuller Bill is unconstitutional for the reasons pointed out in the demurrer to the indictment. —Edge v. City of Bessemer, 164 Ala. 599; 6 L. R. A. 847; 123 U. S. 661.

Heard before Hon. J. J. Curtis. J. M. Sandlin ivas convicted of violating tbe prohibition law, and be appeals. No brief reached the Reporter.

Heard before Hon. H. A. Pearce. Yance Brigman was convicted of violating tbe prohibition laAV and he appeals. The record shows that Yance Brigman was not the solicitor, and hence the indictment should have been quashed. — Joiner v. State, 78 Ala. 448.

Heard before Hon. John A. Campbell. Bill Kinsaul was convicted of violating the prohibition law, and he appeals. The testimony tended to show that J. H. Badford was the owner and proprietor of a restaurant and a meat market, and that defendant was an employee, and had a key to the premises and looked after the business, . except when he was out in the country buying cattle.

Heard before Hon. A. L. Rankin. Ad. Redman entered a plea of guilty to violating the prohibition law, and ivas sentenced according to law, and appeals. No point was made as to the drawing or organization of either the grand or petit juries, and hence, the transcript should not contain these matters. The motion to strike should therefore be granted.- — Hatch v. State, 144 Ala. 50; Tipton v. State, 140 Ala. 39; Sec. 6256, Code 1907.

Heard before Hon. T. L. Sowell. Earl Dunn was convicted of violating tbe prohibition laws, and be appeals. Tbe charge given for tbe state was erroneous as a charge upon tbe effect of evidence, and as authorizing a conviction without proof of guilt beyond a reasonable doubt. — Huffman v. State, 29 Ala. 40; Morrison v. State, 151 Ala. 115; Whittaker v. State, 105- Ala. 34; Pearson v. State, 99 Ala. 148; Heath v. State, 99 Ala. 179; Buchanan v. State, 109 Ala. 11.

Heard before Hon. Mike Sollie. Asa Watson was convicted of violating the prohibition law, and he appeals. The bill of exceptions shows the following: The defendant thén presented to the court a charge which was in writing, and which as originally written was in words and figures as follows: “Charge 5.

Heard before Hon. Armstead Brown. Charlie Glass was convicted of violating the prohibition law, and he appeals. There was direct evidence of a sale by defendant of beer, and the evidence noted as being objected to has reference to the details and manner of payment, and the fact that other beer and whisky was found and seized, and the exhibitions to the jury of the stuff received.

Heard before Hon. H. A. Pearce. M. J. Patterson was convicted of violating tte prohibition laws, and be appeals. The court erred in permitting it to be shown that the sheriff stayed there all night. — 60 South. 447.

Heard before Hon. Thomas W. Wejrt. Sam H. Blackwell was convicted of violating the prohibition Jaw, and he appeals. The record is regular and what purports to be a bill of exception fails to show any objections or exceptions reserved on the trial, and hence, presents nothing for review.

Heard before Hon. Thomas .W. Wert. Jerry Tarpey was convicted of violating tbe prohibition law, and be appeals. While in a proper case tbe United States Revenue stamp tax is admissible, it was not admissible here, bécause it contained two months authorizing the business after tbe finding of tbe indictment. — -Section 22%, Acts 1909, p. 84. Tbe evidence was not sufficient to sustain a conviction.— Edge v. Bessemer, 164 Ala. 199; Toole v. State, 170 Ala. 41.

Heard before Hon. J. C. B. Gwin. James M. Robinson was convicted of keeping a gaming table, and be appeals. The indictment charged that Jim Robertson, alias Jim Robinson, whose name to the grand jury is otherwise unknown, etc., kept, exhibited, or was interested in keeping or exhibiting a gaming table for gaming. The plea set up that his name was not Jim Robinson, and that- he had always been known and called James M. Robinson, or Jim M. Robinson, but nothing else.

Heard before Hon. C. P. Almon. K. L. Wright was convicted of selling lightning rods without a license and he appeals. The indictment was subject to the demurrer interposed. Sec. 7713, Code 1907; Merritt v. State, 59 Ala. 46. Under the facts in this case, the statement of the agent as to the total cost of the rod was no part of the contract and was irrelevant. — Blank v. Moore, 139 Ala. 624; Fulton v. Medicine Go., 145 Ala. 331.

Heard before Hon. H. A. Pearce. Detinue by the Slocumb' Mule Company against J. E. Black, and others. From a judgment for plaintiff against J. E. Black, he appeals. The suit was against Black & Campbell, as individuals, but the verdict and judgment are against Black alone, and adjudged the whole cost to him, this was error. — S'ec. 3368, Code 1907; 90 Ala. 527; 111 Ala. 310.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Detinue and trover by J. W. Caple against J. W. Roberts for the recovery of a house. Judgment for plaintiff and defendant appeals.

Heard, before Hon. H. A. Pearce. Detinue by the Starr Piano Company against D. A. Baker. Judgment for defendant and plaintiff appeals. The court erred in refusing to allow the amendment. — Sec. 5367, Code 1907. The affirmative charge should never be given where there is a conflict in the evidence, or where unfavorable inferences can be drawn. — L. & N. v. Lancaster, 121 Ala. 471; Holmes v. B. R. L. & P. Co., 140 Ala. 208.

Heard before Hon. Bernard Harwo'od. Detinue by U. G. Fife against Tommie Pritchett. Judgment for plaintiff, and defendant appeals. The pleadings and facts sufficiently appear from the opinion.

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. Curtis.</p> <p>From a conviction in the Recorder’s Court of the city of Jasper, for violating the prohibition law, Lewis Free-ney appealed to the Circuit Court, where he was again found guilty, and appeals here.</p> <p>The court should have allowed the evidence offered as to the time between the prior order for whisky and the order for the whisky found in defendant’s place of business.; — Smith v. State, 56 South. ■ 39; Coates v. State, 59 South. 324; Allison v. ■State, 55 South. 454; Wright v. State, 136 Ala. 145.</p> <p>No brief reached the Reporter.</p>

Heard before Hon. Cecil Browne. Tbe city of Talladega prosecuted Benjamin B. Sims for violating Ordinance No. 123. On appeal to tbe city court, there was judgment for defendant on demurrer and plaintiff appeals. Tbe city was operating under a charter granted by the Legislature, and bad full power to pass tbe ordinance. Tbe city’s right of appeal is secured by section 1220, Code 1907.

Heard before Hon. James H.' Balleñtine. Petition by Kate Gaston to recover of William Bailey tbe custody of Bailey’s. infant son. From an order granting tbe relief prayed, defendant appeals. Tbe court erred in tbe findings, conclusion and judgment rendered. — Hog parte Boas, 31 Ala. 427; Brmster v. Compton, 68 Ala. 302] Neville v._ Reid, 134 Ala. 317; Kirhbridge v. Harvey, 139 Ala. 231; Harrist v. Harrist, 151 Ala. 659.

Heard before Hon. W. W. Haralson. M. Gordon, as execution plaintiff had execution levied upon certain property as the property of defendant in the process, to which Jordan Brothers interposed a claim. Judgment for plaintiff and claimants appeal. The execution was void. — Strioldancl v. Hardy, 82 Ala. 411; Graham v. Chandler, 15 Ala. 345.

Heard before Hon. John C. Pugh. Action by I. D. Martin against tbe Interstate Amusement Company. Judgment for plaintiff, and defendant appeals.

Heard before lion. D. W. Speaks. Trover and Conversion by tlie Huntsville Lumber Company against C. C. Rolfe and another. Judgment for plaintiff and defendant appeals. The contract was purely executory and the legal title did not vest in the plaintiff. — Browning v. Hamilton, 42 Ala. 484; Robinson v. Hirschfelder} 59 Ala. 503. It ivas nothing more than a conditional acceptance. — 24 A. & E. Enc. of Law, 1091. The plaintiffs waived the tort. — Singer Mfg.

Heard before Hon. W. W. Pearson. Action by Lulu Dennis Sanders against W. J. Fiquette, for damages for libel and slander. Judgment for plaintiff and defendant appeals. The charges referred- to in the opinion as being requested were affirmative charges not to find for plaintiff if the jury believed the evidence.

Heard before 1-Ion. E. C. Cito we. Action by S. W. Acton against the Southern Iron & Steel Company, for damages to land by a deposit of minerals and refuse matters thereon. Judgment for plaintiff and defendant appeals. The demurrers to count 2 as amended should have been sustained. —N. Ala. By. Oo. v. Mansell, 138 Ala. 548; A. B. & A. By. Oo. v. Wood, 160 Ala. 657; T. G. & I. v. Hamilton, 100 Ala. 52.

Heard before Hon. Gaston Gunter. Action by the Riverside Company against the Montgomery Light & Traction Company for damages done to wagon and mules. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Bernard Harwood. Trover and conversion by M. C. McAdams & Co. against M. V. Smith and Guff Smith. Judgment for defendants and plaintiffs appeal.

Heard before Hon. Cecil Browne. Action by E. F. Conville against the Central of Georgia Railway Company. Prom a judgment for plaintiff, defendant appeals. The first count of the complaint alleges the ownership in plaintiff of certain lands, which are described, and the fact that he, with his wife and children, resided thereon, and describing the parts thereof planted in cotton.

Appeal. from Bessemer City Court. Heard before Hon. J. C. B. Gwin. Action by Mrs. S. B. Whaley against the city of Bessemer for damages for injury from an alleged defect in the streets of said city. Judgment for plaintiff and defendant appeals. There could be no recovery against the apepllant for a failure to enact an ordinance, or to carry out its governmental duties. —Dillon Munic. Corp. sec. 1627-8; 28 Cyc. 1257. A recovery was not authorized under section 1273, Code 1907.

I-Iearcl before Hon. A. 0. Lane. Action by R. E. Thomason against the Birmingham Realty Company for injuries caused by blasting. Judgment for plaintiff, and defendant appeals.

Heard, before Hon. C. C. Nesmith. Action by S. L. Irwin against W. H. Barnard for damages for an assault and battery. Judgment by default or nil dicit for plaintiff, and defendant appeals. Where a negative plea is on file, a judgment by default or nil dicit cannot be rendered against a defendant, although he fails to appear, and prove or insist upon his plea.

Heard before Hon. John H. Disqtje. Action by the Phillips-Neely Mercantile Company against T. C. Banks, for damages for destruction of a lien. Judgment for defendant and plaintiff appeals. The benefit of the statute of frauds is not available unless specially pleaded by one having a right to set up the defense, and such contracts are voidable merely and not void, and a stranger to the contract cannot set up its invalidity.- — Marsh v. Frick, 1 Ala.

Heard before Hon. Charles W. Ferguson. Action by Mrs. Nettie E. Adkins against the Birmingham Railway, Light & Power Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by Mary Penick against the Louisville & Nashville Railroad Company. Judgment for the plaintiff, and defendant appeals.

Heard before Hon. Charles W. Ferguson. Action by R E. Kay against the Louisville & Nashville Bailroad Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. E. J. Garrison. Action by T. A. G. Kelley, as administrator against H. M. Atkinson and others, as receivers for damages for the death of his intestate. Judgment for plaintiff and defendants appeals. It is undisputed in this case that intestate was a trespasser at the time he was struck by one of appellant’s trains. — Sou. Ry. v. Gullatt, 150 Ala. 320; Sou. Ry. Co. v. Gullatt, 158 Ala. 504; (J. of G. By. Go. v. Blackmon, 169 Ala. 304; Mig&cll v. Sou. By.

Heard before Hon. John H. Disqub. Action by the Caldwell-Spence Company against the Southern Railway Company, for damages for failure to deliver freight. Judgment for plaintiff and defendant appeals.

Heard before Hou. Mike Sollie. Action by T. M. Coursen against the Central of Georgia Railway Company, for damages for failure to deliver baggage. Judgment for plaintiff and defendant appeals. No brief came to the Reporter.

H'eard before Hon. S. L. Brewer. Action by Hudson Neal, pro ami, against the Alabama Great Southern Bailroad Company. Judgment for plaintiff, and defendant appeals. The substance of the pleadings, the facts, and the assignments of error relative to evidence sufficiently appear from the opinion. The following charges were refused to defendant: (1) General affirmative charge. (3) Affirmative charge to second count. (4) Affirmative charge as to fourth count.

Heard before Hon. Samuel B. Browne. Action by Albert McNeil against the Mnnson Steamship Line for injuries while engaged in its employment. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear from the opinion. Charge 17 is as follows: “The court charges the jury that the fact of plaintiff’s injury does not of itself give him a right of recovery.

Heard before Hon. Charles W. Ferguson. Action by Robert Robue for personal injuries against tbe Sloss-Sheffield Steel & Iron Company. From a judgment in favor of plaintiff, defendant appeals.

Heard before Hon. Gaston - Guntee. - Action for personal injuries by Sam Pierson against Stephens & Donaldson and others. From a judgment in favor of plaintiff, defendants appeal.

Heard, before Hon. William M. Walker. Action by Charles Ross against the Harbison-Wal-Ler Refractories Company. Judgment for the plaintiff, and defendant appeals.

Heard before Hon. W. W. Pearson. Action by J. P. Tilley against H. T. Bartow in as-sumpsit. From a judgment entered for plaintiff, be appeals. Counsel discusss errors assigned, but without citation of authority. To take advantage of informalities or inaccuracies in the verdict, objection should be made before the jury is discharged. — Marian-na Mfg. Oo. v. Boone, 45 South. 750.

Heard before Hon. G. C. Nesmith. Action by the Oak Leaf Coal Company against the Bullard Car Door Equipment Company. From a judgment for plaintiff, defendant appeals.

Heard before H'on. Samuel B. Browne. Assumpsit by Felix S. Cleveland and others, against E. M. Wheeler. From a judgment awarding plaintiff insufficient damages, he appeals. For former report of this case see 170 Ala. 426. The court, under the evidence committed grave error in giving the charge complained of. As to what is market value, see 16 Oyc. 1142; 26 819; 99 Mass. 345; 25 N. J. Eq. 144; 162 N. Y. 327; 88 Mich. 15.

Heard before Hon. John H. Disqtje. Assumpsit by James Connelly, doing business as tbe Connelly Boiler Works, against the Tri-City Gas Company. Judgment for plaintiff, and defendant appeals.

Heard before Hon. J. C. B. Gwin. Action by W. M. Ewing against tbe Long-Lewis Hardware Company. Judgment, for plaintiff and defendant appeals. A party cannot be agent for both buyer and seller at one and the same time unless both parties are aware of it at the time.' — Green v. So. States L. Go., 141 Ala. 680; 129 U. S. 643.

Heard before Hon. Th'omas W. Wert. Action by R. H. Sample against W. H. Drinkard, in which S. E. Stewart, as administrator of C. G. Harris, filed a statutory interpleader. From a judgment for plaintiff for less than the relief demanded, he appeals, and defendant administrator prosecutes a cross-appeal. No brief reached the Reporter. No brief reached the Reporter.

Heard before Hon. Jabíes J. Curtis. Assumpsit by the Kentucky Wagon Manufacturing Company against the Blanton-Curtis Mercantile Company. Judgment for defendant; plaintiff appeals. The contents of the condition of the notes sued on sufficiently appear in the opinion.